Judge Dread: Bush vs. Civil Liberties

Much of the shadowy war on terrorism is being fought far from the bustle of everyday American life. What we know about it comes mostly from the jaunty euphemistic banter of Pentagon briefings. With few exceptions, the battle against Al Qaeda and other terrorists has one official version -- that of the Defense Department.

But the shadow of government secrecy has darkened places much closer to home -- including US courts and jails. As the one-year anniversary of the attacks on the World Trade Center and the Pentagon approaches, the US Department of Justice continues to wage its own war to keep Americans in the dark about its vast incursions into their civil liberties -- including secret arrests and deportations, lowered barriers to covert searches, and a "don't ask, won't tell" attitude toward public scrutiny.

The US Congress has done its part to dim the lights on due process and transparency. Both houses passed sweeping anti-terrorism measures requested by Attorney General John Ashcroft in short order and with little debate. Only recently have congressional oversight committees asked the Justice Department to account for its use of the new powers. They have been told to go away.

For instance, the New York Times reported in mid-August that the Justice Department notified the House Judiciary Committee that it would not answer many of its written questions about anti-terrorism measures. Rather, its replies would be sent to the House Intelligence Committee. The Times also reported that the Senate Judiciary Committee was stiffed by the Justice Department in a similar fashion.

Many of the Justice Department's activities since the 9/11 attacks -- including the lengthy detention of individuals on mere suspicion of wrongdoing, ethnic and religious profiling, secret hearings, and strong-arm efforts to demolish walls between criminal investigations and intelligence gathering -- are worthy of a few questions. Taken together, its blunderbuss approach to law enforcement has watchdog groups growling.

"For 10 months or so," says Hussein Ibish, communications director of the American-Arab Anti-Discrimination Committee, "we've seen a radical departure from American legal traditions and standards. There's been the introduction of large new elements of secrecy, especially in regard to foreign nationals, that is simply incompatible on its face with the Fourth Amendment."

Lately, however, the Bush administration's roughshod approach to the home-front war on terrorism has met with more than the barks of civil libertarians. The Justice Department is also feeling the bite of the federal judiciary. A string of recent decisions -- including an unprecedented public ruling from a secretive intelligence court -- has gone against the Justice Department.

In the last few months, judges have rejected government arguments on issues ranging from closed immigration hearings and new rules for the use of intrusive surveillance against US citizens to a blackout on the identities of those swept up in the feds' post-9/11 dragnet.

The rhetoric of one recent judicial rejection of the wholesale closure of deportation hearings at the direction of the Office of the Chief Immigration Judge (a practice initiated at Ashcroft's behest via a September 21, 2001, memo by US chief immigration judge Michael J. Creppy) is representative. The Sixth Circuit Court of Appeals ruled on August 26 that the Justice Department was "placing its actions beyond public scrutiny," and noted that "the public's interests are best served by open proceedings."

Close observers of civil-liberties law agree that the Justice Department is on a bit of a losing streak. "I think it's significant any time that a court rejects an executive-branch assertion of national security in a time of crisis," says Georgetown University Law School professor David Cole. "That so many [courts] have done so is remarkable."

Ashcroft's public statements on the vast new authority asserted by federal law enforcement after 9/11 -- and the steep escalation of government secrecy surrounding it -- can be summed up in the words of South Park's Officer Barbrady: "This isn't happening. Everyone look away please. Nothing to see here."

And if anyone complains? The attorney general says that he or she is helping the bad guys. Last December, Ashcroft told the US Senate's Judiciary Committee that "to those who scare peace-loving people with phantoms of lost liberty, my message is this: your tactics only aid terrorists -- for they erode our national unity and diminish our resolve. They give ammunition to America's enemies, and pause to America's friends."

The tight pinch on civil liberties began just as the horrible images from New York, Virginia, and Pennsylvania sank in. Little more than a week after the attacks, Ashcroft sent a 21-page grab bag of new anti-terrorist measures to Capitol Hill. Many of these measures, particularly those which sought to lower the threshold for obtaining wiretap warrants, had been sought previously by Ashcroft and his predecessors. In a political climate that had warmed in its favor, the Justice Department's pitch to Congress sought a more permanent vacation from well-established due process and transparency. Even a brief hold-up in congressional rubber-stamping of his proposals last October had Ashcroft muttering darkly that "talk won't prevent terrorism."

Just over six weeks after the attacks, on October 26, 2001, President Bush signed the Uniting and Strengthening America by Providing Appropriate Tools to Intercept and Obstruct Terrorism Act (USA Patriot Act) into law. It was a slam-dunk for the Justice Department, giving law-enforcement officials broad new powers to arrest or detain non-citizens and share information across regulatory walls designed to prevent abuses of government power. The new law also reduced the scope of judicial review over surveillance and immigration decisions.

The passage of the USA Patriot Act may have been the high-water mark of the Bush administration's curtailment of civil liberties. Less than two weeks after the law took effect, the Justice Department announced that it would no longer release a running tally of the "detainees" scooped up in its post-9/11 anti-terrorism sweep.

When the counting stopped last November (most of the detainees' names were never released), nearly 1200 people had been snared in the dragnet. Thus far, only six of them have been charged in connection with the terrorist assault -- in indictments just handed down on August 28. Of the nearly 800 detainees arrested on immigration charges, 74 remained in custody in June. Most of the others have been released and deported. Numbers on those held on criminal charges or as "material witnesses" is sketchier. In June, the government confirmed that 73 were still in custody on criminal charges.

Still, in the 10 months since the USA Patriot Act came into force, federal courts have nibbled steadily at Ashcroft's sweeping assertions of authority. Yet the first blow came from a state court. On March 27, New Jersey Superior Court judge Arthur D'Italia ruled that the names of post-9/11 detainees in that state were to be made public. A state appeals court in New Jersey reversed Judge D'Italia's decision in June. It was the Justice Department's only significant victory thus far, but it was short-lived. On August 2, US District Court judge Gladys Kessler ordered the Justice Department to release the identities of all post-9/11 detainees.

Kessler did agree that the government could withhold the locations and dates of the 9/11-related arrests. But she also observed that the government had demonstrated no satisfactory links between any of its detainees and terrorist activity. "Indeed," wrote Kessler, "when asked by the Court during the Motions Hearing to explain the standard used to arrest the detainees, or otherwise to substantiate the purported connection to terrorism, the Government was unable to answer."

The Justice Department has suffered further setbacks in its broad efforts to close immigration hearings to the media and the public. In April and May, federal district-court judges ruled that the blanket ban instituted last September at Ashcroft's direction was unconstitutional. On August 26, the Sixth Circuit Court of Appeals strongly affirmed the April ruling handed down by District Court judge Nancy Edmunds. (The Supreme Court has allowed the closed hearings to continue as the legal process unfolds.)

Even in America's murkier legal gray areas, where law enforcement overlaps with the cloak-and-dagger, the government has suffered a severe public rebuke. A May 17 ruling by the highly secretive Foreign Intelligence Surveillance Court -- a ruling made public only in August -- brought to light the Justice Department's attempts to demolish walls between intelligence gathering and criminal investigations. The seven-judge panel -- which had never before issued a public ruling -- traced a pattern of government abuse of the Foreign Intelligence Surveillance Act (FISA) that predated the war on terrorism, including dozens of errors in FBI affidavits and what the court described as "omissions of material facts." It also rejected new proposals by the Justice Department to water down the law even further.

James X. Dempsey, deputy director of the Center for Democracy and Technology, says that "even before the passage of the USA Patriot Act, there was absolutely no prohibition on the sharing of FISA information with criminal investigators." The new law simply loosened what reins did exist. The proposals before the court in May would have hollowed out any meaningful distinction between the spy game and criminal prosecutions.

Dempsey sees Ashcroft's FISA maneuvering as "an effort of the Justice Department to say that if we are coordinating criminal investigations of international terrorism, we don't have to follow criminal-procedure rules that flow from the Constitution. We can use the alternate rules developed for counterintelligence." He says that the executive branch's desired switch "entails things that this Justice Department loves -- absolute secrecy, collecting more information and keeping it for longer, and never telling the target of the investigation. It is of a piece with the other claims to exercise power in secret made by this Justice Department."

Thus far, the Justice Department has filed an appeal of each and every one of the rulings against it in the federal courts. It's even appealing the unprecedented FISA ruling to a special three-judge panel, which will convene for the very first time to hear it.

More legal tussles -- testing White House claims that it is exercising legitimate wartime powers -- also loom on the horizon. Among these cases are those of two US citizens, Yasser Hamdi and Jose Padilla, whom the government has arrested and designated as "enemy combatants." The Justice Department argues that this appellation should deny both men the protections of the Constitution and international military justice.

Already, the legal battles over Hamdi's right to an attorney have come to a head, with the Fourth Circuit Court of Appeals overruling District Court judge Robert Doumar's decision to provide Hamdi with counsel -- and then kicking the case back to Doumar.

Cole argues that even this initial victory for the government in Hamdi's case has a sting in its tail. "The government's position [in this case] was that the courts had no role to play," he says. "The Fourth Circuit -- the most conservative federal court in the nation -- rejected that view."

It is important to note that none of the recent rulings has challenged the secretive approach of Ashcroft's Justice Department on its face. "What the courts are reacting to is the 'routinization' of secrecy," observes Ibish. "The courts are saying, as regards due process, that there are still rules here."

In Cole's view, the history of US jurisprudence in other times of war and national emergency in the last century (from World War I through the Cold War) is the tale of a judiciary deferring to excesses deemed necessary by the executive branch -- and only cleaning up the mess at a later date.

"Given this history," he says, "one can expect an extremely deferential judiciary." Thus, the federal courts' current feistiness makes for a surprise of sorts. "One hopes it's a reflection on learning some lessons," Cole adds. "The more ominous view is that these rulings reflect the breadth of the assertions of authority by the Ashcroft Justice Department."

Ibish agrees that court battles over what might be dubbed the "Ashcroft Doctrine" -- sweeping federal law-enforcement powers exercised in a climate of secrecy -- is just beginning. "The judicial branch is starting to play its constitutional role," says Ibish. "It's starting to kick in. [The Justice Department] has been given near carte blanche in Congress, but they're not getting carte blanche from an independent federal judiciary."

At the moment, that independent judiciary has become the first -- and last -- line of defense for American liberties. It remains an open question whether the legislature, which exercises the other constitutional check on the executive branch, or the highly volatile court of public opinion will also rally to the cause of civil liberty.

Richard Byrne is a freelance writer based in Washington, D.C.

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